54 Vt. 498 | Vt. | 1882
The opinion of the court was delivered by
By an act of the Legislature, approved November 19,1866, which was at all times to be under the control of the
On the charter-day in 1880, the petitioners, Joseph B. Small, William B. Weston, Francis Leclair, Michael Gibbons, and Barnard Graham, were duly elected trustees of said village.
By an act of the Legislature, approved December 9, 1880, it was provided that the officers of said village to be annually elected should be a moderator, a clerk, a treasurer, a collector of taxes, six trustees, three fire wardens, and two auditors of accounts, who should hold their office for one year, and until their successors should be elected and qualified ; that thereafter the legal voters of each of the wards of said village, at its annual meeting for the election of officers, should elect two of the trustees and one of the fire wardens of said village, instead of those officers being elected by general vote of the voters of the whole village, as then provided by law; that the village clerk should provide a separate ballot-box for each ward, into which the ballots of the voters of each ward should be cast for the trustees and fire warden resident therein; that said ward-boxes should be held open until the voters
The annual meeting of said village for the year 1881 was legally warned by William,Kidder, the village clerk, to be held at Concert Hall, in said village, on the second Wednesday of January of that year, at 7 o’clock in the afternoon, at which time and place the legal voters in village meeting assembled, and a majority of those present being opposed to the provisions of the act of 1880, for the purpose of defeating the election of officers thereunder, and without doing any business, voted to adjourn said meeting till the first Monday of January, 1882, at 7i o’clock in the afternoon, at which time said meeting was again adjourned, for the purpose aforesaid, and without doing any business, till the second Wednesday of said January, at 5i o’clock in the afternoon, at which time, for the purpose aforesaid, and without electing any officers, said meeting was adjourned without day.
The annual meeting of said village for the election of officers for the year 1882, was warned by said Kidder as clerk of said village, to be held at Corporation Hall in said village, on the second Wednesday of January, at 7 o’clock in the afternoon, at which time and place the voters assembled, and a majority of those present, still being opposed to the provisions of the act of 1880, for the purpose aforesaid, and without doing any business, voted to adjourn said meeting without day. The voters present who were in favor of said act, believing said adjournment to be illegal, and brought about for the purpose aforesaid, remained in the hall, re-organized the meeting, and proceeded to the election of officers as provided by said last-mentioned act, and then and there, among other officers, elected the petitioners, Allen Stone,
There are sundry books and papers and articles of property belonging to the village in the possession of the petitionees, of whom the petitioners as trustees have demanded the same, but who refuse to deliver the same to the petitioners, denying their right to receive the same, and claiming that they themselves are the legal trustees of said village by virtue of their election in 1880 as aforesaid; that no successors to them have been elected ; and that they are still exercising the office of trustees.
The petition prays for a writ of mandamus, commanding the ’ petitionees to deliver said books, papers, and property to the petitioners as trustees of said village, and not to disturb nor molest the petitioners in the exercise of the office of trustees, and for alternate relief.
Mandamus is the proper remedy. Kimball v. Lamprey, 19 N. H. 215 ; Strong, petitioner, 20 Pick. 484 ; Conlin v. Aldrich, 98 Mass. 557 ; American Railway Frog Company v. Haven, 101 Mass. 398.
The original charter made it imperative on the village, at every annual meeting thereof, to elect the officers thereby provided for. The act of 1880 was equally imperative in this behalf, and provided that the ward-boxes should be held open until the voters of each ward had had a fair and reasonable opportunity to deposit their ballots. It is also to be noticed that this act created the office of auditors of accounts, and increased the number of trustees and lessened the number of fire wardens, and made a radical change in the manner of their election. This corporation is governmental in its functions, and invested with certain powers, rights, and privileges, that it may perform the duties cast upon it; and it cannot, by refusing to perform those duties, be permitted to defeat the provisions and purposes of the law of its creation. At a meeting duly constituted and organized, a majority of the voters present, in the absence of any statute or other restraining authority to'the contrary, have an implied right to adjourn the meeting to another time and place. But even this, we apprehend,
The result is, we hold that the petitioners were duly elected trustees of said village at the annual meeting thereof held on the second Wednesday of January, 1882; and it is ordered that a writ of mandamus issue, commanding the said petitionees to forthwith deliver to the said petitioners, trustees as aforesaid, all and singular the books, papers, and articles of personal property of every description that they, the said petitionees, or any of them, have in their possession or under their control, belonging to said